Finding in proceeding under act need not affirmatively show lack of evidence
or inability to find, failure to find alone being equivalent to finding
against party on whom burden of proof rests. Raynes v. Staats-Raynes
Co. (Ind.)
Conceding that Commission would be acting without jurisdiction, as, for
instance in action for damages by libel, its acts in any compensation
proceeding, though beyond its jurisdiction are not so without jurisdiction
of the subject-matter to be subject to collateral attack. Thaxter v.
Finn, Sheriff. (Cal.).....
Compensation Board, if not sustaining referee's decision, may not reverse
on question of fact, but must grant a hearing de novo, and substitute
its own findings and conclusions, and on appeal on alleged error of law,
must act solely on referee's record, and sustain, reverse. or modify his
final order-Appeal to Compensation Board-referee's finding of fact
without any evidence at all is an "error of law"-board must exercise
its discretion in determining nature of appeal-board must sustain
referee or grant a hearing de nova-testimony cannot be re-examined
for finding of new facts-facts justified conclusion that servant died as
result of injury by accident in course of employment-board could not
make separate findings of fact, so that provision of section 409 that its
findings of fact should be final, did not apply. McCauley v. Imperial
Woolen Co. et al. (Pa.)..

Findings of board held to sustain award to coal miner who lost sight of
eye through injury but gave no notice to employer, on ground that em-
ployer's agents had actual knowledge, and reasonable excuse for failure
to give notice existed. Vandalia Coal Co. v. Holtz (Ind.)..

§ 417.

REVIEW BY COURT IN GENERAL.
Board having found facts showing actual knowledge of injury by employer's
agents, also reasonable excuse for failure to give statutory notice,
findings are binding on Appellate Court, if there is any evidence to
sustain either. Vandalia Coal Co. v. Holtz (Ind.)....

(1). Nature and form of remedy.

485

431

930

880

880

Award from which error has not been prosecuted is to be certified by trial
court to commission and thereafter to be treated in all respects as if
originally rendered by such commission-continuing jurisdiction-30 day
period does not begin to run against claimant until he has received
actual notice or rejection of claim-where employer has elected to pay.
compensation directly to employee, if denied participation in state fund,
injured employee may appeal to court of common pleas of county wherein
injury was inflicted. Roma v. Industrial Commission of Ohio (Ohio)... 122
"Summary Manner" means a short concise and immediate proceeding. Phil
Hollenbach Co. v. Hollenbach (Ky.)......

Where Commission certified to Appellate Division question regarding its
powers, asking advisory opinion thereon, Appellate Division was without
power to order anything to be done but could only answer question-
Legislature did not attempt to authorize merely advisory opinions, but
questions certified under act must be incidental to pending controversy.
In re Workmen's Compensation Fund. Self-Insurers' Ass'n et al. V.
State Industrial Commission (N. Y.).......

Appeal from Compensation Board to common pleas is in nature of certiorari,
intended to prevent appeals to courts, except for errors of law, and to
hasten final determination of claims. McCauley v. Imperial Woolen Co.
et al. (Pa.)

(34)

Whether claimant was engaged in horticultural work and therefore not sub-
ject to act when injured, was for commission. whose decision was beyond
review by certiorari. George v. Industrial Accident Commission et al.
(Cal.)
Where referee disallowed claim for compensation because employer and em-
ployee were engaged in interstate commerce and Compensation Act did
not apply, Compensation Board's affirmance thereof was final and appear
therefrom to common pleas was properly dismissed. Messinger v. Lehigh
Valley R. Co. (Pa.)..

492

542

930

748

940

Where proof offered by claimant, in this case. widow of employee killed in
coal mine. in support of her claim as dependent for contribution out of
workmen's compensation fund, is clear an uncontradicted, an adverse
adjudication of her right thereto may be revised and claim allowed on
appeal. Poccardi, Royal Consul, v. Ott, Compensation Com'r (W. Va.). 9)
Where board concludes that referee's adjudications indicated that there
was no evidence before him substantiating allegations of claim petition,
its order granting a hearing de nova is interlocutory and no appeal lies
therefrom. Mooney v. Lehigh Valley R. Co. (Pa.)

(3%). Right or review.

Employer who contributes to insurance fund as self-insurer, by contributing
directly or by insuring with insurance company. has right of appeal from

942

award of commission which is alleged to have been made without_juris-
diction. Industrial Commission of Utah v. Evans, District Judge (Utah). 848
Where employer's petition for certiorari to review award of Board alleges
that commission found without evidence that claimant was entitled to
compensation and that order is based on that finding. finding and order
were necessarily in excess of power of commission and subject to review.
Industrial Commission of Utah v. Evans, District Judge (Utah)..........

(3%). Proceedings for appeal or other form of review.
Employer's appeal from order of commission must be timely. Industrial Com-
mission of Utah v. Evans, District Judge (Utah).

Letter to Industrial Board from insurance carrier, though beginning "We
hereby file notice of intention to appeal," yet concluding "To be on the
safe side I am filing this notice of appeal,' should liberally be regarded
as notice of appeal. Prendergast v. Berrian Bros. et al (N. Y.)..
Right of appeal from decision of commission being statutory, party desiring
to avail himself of such privileges, must comply with statute. Stacks v.
Industrial Commission of Colorado et al. (Col.)........

848

848

826

756

(4.) Presentation and reservations of grounds of review.
That after rehearing commission informed claimant that second rehearing
could not be granted, would not give district court jurisdiction to review
action of commission on claimant's petition, where he had not petitioned
for rehearing. Stacks v. Industrial Commission of Colorado et al. (Col.) 756
Appellate Court, on certiorari, may examine opinion of the board to see
basis on which it acted. McCauley v. Imperial Woolen Co. et al. (Pa.). 930

(4%)

Compensation referee is an officer of the compensation Board, with defined
powers, and his recòrds belong to files of court, and on appeal, are
before it for review within limitations of the act-notes of testimony
are not properly part of record sent up on appeal from Compensation
Board to common pleas under Compensation Act, and if mistakenly
included in record, should not be considered. McCauley v. Imperial
Woolen Co. et al. (Pa.)..........

(4%). Transfer of cause.

930

Award from which error has not been prosecuted is to be certified by trial
court to commission and thereafter to be treated in all respects as if
originally rendered by such commission-continuing jurisdiction-30 day
period does not begin to run against claimant until he has received
actual notice or rejection of claim-where employer has elected to pay
compensation directly to employee, if denied participation in state fund,
injured employee may appeal to court of common pleas of county wherein
injury was inflicted. Roma v. Industrial Commission of Ohio (Ohio).. 122
Petition for appeal must be filed within 20 days and the summons also must
be issued within such period-it may be waived. Phil Hollenbach Co. v.
Hollenbach (Ky.)

Evidence before board alone constitutes transcript of evidence on appeal:
Phil Hollenbach Co. v. Hollenbach (Ky.).
Notwithstanding award would have been annulled on proper review, 4m-
ployer can have relief only where proceeding is instituted in proper time
and court, failing which, award is not open to attack. Thaxter v. Finn,
Sheriff (Cal.)

......

(5). Trial or review.

District court cannot make new findings of fact, but must accept those of
commission if supported by credible and substantial evidence. Industrial
Commission of Colorado et al. v. Johnson (Col.)..
Where construction of uncertan or ambiguous contract is one of mixed law
and fact for determination of board, its conclusion in presence of some
evidence is binding on appeal. Mobley v. J. S. Rogers Co. (Ind.)...
Where plaintiff fails to serve and file brief within time required by rule 5,
appeal will be considered abandoned and upon motion will be dismissed.
Davis v. State Industrial Commission et al. (Okla.).
The act including docks and wharves with enumerated hazardous employ-
ments and on findings that employer was carrying on general public
warehouse, dock and wharf business and that deceased was watchman
in warehouse and on stipulation that work was extrahazardous, it will be
inferred that dock, wharf and warehouse was single structure of plant,
or that if they were separate that were so operated as to make one
business. O'Brien v. Industrial Insurance Department (Wash.).
On holding that same is warehouse it will be presumed that fund is or
would be collected out of which claim of widow could be satisfied.
O'Brien v. Industrial Insurance Department (Wash.).
Burden of proving that decision of commission as to whether injury was re-
ceived by servant within scope of employment, was incorrect rests upon
appellant-it was for jury to determine question of fact presented by ap-
peal. Jewel Tea Co. v. Weber (Md.)..

.....

Requested instruction was properly amended-refusal of court, sitting for
jury, to rule as matter of law, there was no evidence legally sufficient
to justify award was proper, evidence presenting questions of fact. Coast-
wise Shipbuilding Co. et al. v. Tolson (Md.).

492

492

431

43

47

130

171

171

87

91

In absence of contrary finding of fact it will be presumed on appeal that
lifting of bundles of paper weighing from 40 to 60 pounds by claimant
did not caues hernia-though commission found that claimant sustained
hernia while lifting and that injury was accidental, claim will be sent
back for rehearing, there being no finding that hernia was caused by
lifting paper or by strain. Alpert v. J. C. & W. E. Powers, et al. (N. Y.). 106
Where application to commission to have evidence stricken was never formally
acted upon it must be assumed to have been denied. Mesmer & Rice et
al. v. Industrial Accident Commission et al. (Cal.) . . . . .
Court on appeal can consider only such proof as was before the commissioner
at time he acted upon application. Poccardi, Royal Consul, V. Ott,
Compensation Com'r (W. Va.).

743

949

Where evidence is conflicting and there is competent evidence to sustain
decision, legal conclusion of board, not based on any evidence will not be
sustained. David Bradley Mfg. Works v. Industrial Board of Illinois et
al. (III)
While determining of facts from evidence is usually exclusive province of
Board, it is reviewable by courts-court must consider only evidence
tending to support award and inference harmonizing therewith-where
servant was drilling pieces of metal where a certain safety appliance
was sufficient and was ordered to drill one where such appliance was
Inadequate and his failure to use a better one resulted in death, held
that it could not be said as matter of law that his conduct amounted
to willful refusal. Haskell & Barker Car Co. v. Kay (Ind.).
That an accident arises out of employment within meaning of act is in
nature of a legal conclusion of the Industrial Board-appellant must
bring to court a record which affirmatively shows reversible error and
not merely finding containing only evidentiary facts susceptible of two in-
ferences. Raynes v. Staats-Raynes Co. (Ind.)..
Where master's negligence is shown, whether intervening negligence of person
injured is proximate cause of injury, is mixed question of law and fact
and one for jury. Dickinson et al. v. Granbery (Okia ).
Whether claimant had established causal connection between accident to
deceased servant in course of employment and his death, more than
three months later, was issue of fact to be determined by board, whose
decision on issue of fact is not open to revision by Supreme Judicial
Court-evidence held insufficient to justify Supreme Judicial Court in
holding as matter of law that finding of board, that claimant had failed
to prove deceased servant's death had any causal connection with pre-
vious injury in employment, was unwarranted. Knight's Case-In
Travelers' Ins. Co. (Mass.)....

re

Burden of proving that decision of commission as to whether injury was re-
ceived by servant within scope of employment, was incorrect rests upon
appellant-it was for jury to determine question of fact presented by ap-
peal. Jewel Tea Co. v. Weber (Md.)...
Requested instruction was properly amended-refusal of court sitting for
jury, to rule as matter of law, there was no evidence legally sufficient
to justify award was proper, evidence presenting questions of fact. Coast-
wise Shipbuilding Co. et al. v. Tolson (Md.).
Commission's conclusions on question of fact are conclusive on Supreme
Court, except when without evidence to support them. Walker v. Indus-
trial Accident Commission (Cal.)..
Evidence sustained award on point whether death was caused by operation
made necessary by second injury resulting from first, received in employ-
ment. Shell Co. of California v. Industrial Accident Commission et al.
(Cal.)
Where there was evidence that injury to employee resulted in pleurisy and
pneumonia causing death, finding that injury was proximate cause will
not be set aside on appeal. A. Breslauer Co. v. Industrial Commission
of Wisconsin et al. (Wis.).

226

466

485

834

901

81

91

29

34

189

Finding that injury did not arise out of employment was finding on question
of fact and could not be set aside if there was any evidence to support
it Murphy's Case. In re Employers' Liability Assur. Corp. (Mass.).... 270
While determining of facts from evidence is usually exclusive province of
Board, it is reviewable by courts-court must consider only evidence
tending to support award and inference harmonizing therewith-where
servant was drilling pieces of metal where a certain safety appliance
was sufficient and was ordered to drill one where such appliance was
inadequate and his failure to use a better one resulted in death, held
that it could not be said as matter of law that his conduct amounted
to willful refusal. Haskell & Barker Car Co. v. Kay (Ind.)...
That an accident arises out of employment within meaning of act is in
nature of a legal conclusion of the Industrial Board-appellant must
bring to court a record which affirmatively shows reversible error and
not merely finding containing only evidentiary facts susceptible of two in-
ferences. Raynes v. Staats-Raynes Co. (Ind.)..

466

485

Only question before Supreme Judicial Court is whether there is any evi-
dence which warranted finding and court is without authority to review
board's finding of fact. Fitzgibbons' Case. (Mass.)...

521.

Court cannot inquire into weight of conflicting evidence to determine where
preponderance lies, though it may inquire whether there is any com-
petent evidence sufficient to sustain award. Peoria Cordage Co. v.
Industrial Board of Illinois et al. (Ill.)..

451

548

492

516

645

Decision of Commission is final as to all questions of fact. Board of Com'rs
of Cleveland County v. Barr et al. (Okla.)
Court on appeal will not order reversal unless finding of fact by Board was
clearly, flagrantly and palpably against weight of evidence. Phil Hollen-
bach Co. v. Hollenbach (Ky.)...
Finding of Board on application of minor employee awarded weekly com-
pensation for payment of lump sum, made upon evidence which might
have supported somewhat larger award, but whose weight and credibility
was wholly for consideration of Board, cannot be disturbed, though no
specific award was made for a period of 10 weeks a matter doubtless
taken into account in making lump sum order. In re Moran (Mass.).
Finding of board on disputed question of fact will ordinarily be affirmed.
- McMinn v. C. Kern Brewing Co. et al. (Mich.).
Where facts are undisputed the inference drawn therefrom will not be re-
viewed-whether employee died from heat prostration by reason of em-
ployment is question of fact for commission. Campbell v. Clausen-
Flanagan Brewery et al.-In re Brewers' Mut. Indemnity Ins. Co. (N. Y.). 676
Where master's negligence is shown, whether intervening negligence of person
injured is proximate cause of injury, is mixed question of law and fact
and one for jury. Dickinson et al. v. Granbery (Okla )..
Under federal Employers' Liability Act servant assumes all ordinary risk of
employment which are known to him. Risks not naturally incident to
occupation, but which arise from negligence of master are not assumed
by servant until he becomes aware of such negligence. Whether risk is
ordinary risk known to servant, or with knowledge of which he is charge-
able is question for jury. Dickinson et al. v. Granbery (Okla.)..
Under federal Employers' Liability Act, whether on day of accident gang of
workmen for which deceased was timekeeper was repairing track used
in interstate commerce was for jury. Crecelius v. Chicago, M. & St. P.
Ry. Co. (Mo.)..

838

838

809

884

Courts may not interfere with finding of facts made by commission where
they are supported by evidence, even though it may be thought there
is error. Pace v. Appanoose County (Iowa)..
Section 409 making board's findings of fact final in all cases, includes all
instances where board either adopts referee's findings or makes its own
findings and courts can grant no relief from its erroneous findings.
Messinger v. Lehigh Valley R. Co. (Pa.)
Where referee's conclusions comprehend mixed findings of fact and law,
board is justified in treating appeal to it as involving question of fact
and granting a hearing de novo. Mooney v. Lehigh Valley R. Co. (Pa.). 942
Finding of board on issue of fact is made conclusive when supported by
competent testimony. Curtis v. Slater Const. Co. (Mich.)..

Defense relied upon was that plaintiff's injuries were result of his negligence
in falling to procure proper medical attention, held there was no substan-
tial evidence for basis of this claim and instructions upon this issue
were not prejudicial to defendant. Dobish v. Cudahy Packing Co. (Kan.).
Where board found that elevator was in defective condition substantial rights
of claimant for compensation were not affected by exclusion of evidence
tending to show defective condition at and before accident. Beckles'
Саве. Flint v. Employers' Liability Assur. Corp. (Mass.)....
Irregularities or errors in mere matters of procedure do not affect jurisdic-
tion of commission to make awards and are not grounds upon which re-
viewing court may vacate award-court will not set aside on certiorari
because of admission of Incompetent testimony, there being enough
competent evidence to sustain award. Maryland Casualty Co. v. In-
dustrial Accident Commission et al. (Cal.).

Award cannot be set aside for error of procedure in admitting incompetent
evidence which was merely cumulative, where there was other evidence
ample to support finding. Mesmer & Rice et al. v. Industrial Accident
Commission et al. (Cal.).

940

909

63

278

616

743

(9). Determination and disposition of cause.
Award from which error has not been prosecuted is to be certified by trial
court to commission and thereafter to be treated in all respects as if
originally rendered by such commission-continuing jurisdiction-30 day
period does not begin to run against claimant until he has received
actual notice or rejection of claim-where employer has elected to pay
compensation directly to employee, if denied participation in state fund,
injured employee may appeal to court of common pleas of county wherein
Injury was inflicted. Roma v. Industrial Commission of Ohio (Ohio).. 122
In absence of contrary finding of fact it will be presumed on appeal that
lifting of bundles of paper weighing from 40 to 60 pounds by claimant
did not use hernia-though commission found that claimant sustained
hernia while lifting and that injury was accidental, claim will be sent
back for rehearing, there being no finding that hernia was caused by
lifting paper or by strain. Alpert v. J. C. & W. E. Powers, et al. (N. Y.). 106.

It is within the power of district court in action to modify award to deter-
mine as matter of law that award was not in accord with findings and
to make award supported by findings. Industrial Commission of Colo-
rado et al. v. Johnson (Col.).

Where judgment on appeal directs commission to fix amount of lump sum
award to servant .for permanent partial disability it may take into con-
sideration competent medical advice as to effect of operation upon injury,
but cannot suspend compensation on ground that injury was hernia, as to
which by a rule of commission, claimant is required to first undergo
operation. Kline v. Industrial Ins. Commission (Wash.)
Where it does not appear that board passed on question of cause of injury,
whether employment, or employee's own physical or mental condition,
case must be recommitted to board to find cause of fall, or, if unknown
So state. Hallett's Case (Mass.).

418.

43

167

281

REVIEW OF JUDGMENT OF COURT ENTERED ON AWARD OF
BOARD OR COMMISSION.

(1). Nature and form of remedy.

(2). Decisions reviewable.

The act expressly provides there shall be no appeal from decree of superior
court, based on memorandum of agreement approved by board, and on
such an attempted appeal the merits of decree cannot be examined.
Dempsey's Case-London Guarantee & Accident Co., Limited, v. Dempsey
(Mass.)

(3). Presentation and reservation of grounds of review.
(3%). Transfer of costs.

Whether single Justice of Supreme Judicial Court, pursuant to St. 1915,
c. 132, should enter an order for suspension pending appeal of decree
of superior court ordering entry of decree for dependent under the act,
and issuance of execution thereon rested in discretion of such justice.
Dempsey's Case-London Guarantee & Accident Co., Limited, v. Dempsey
(Mass)
Superior court had jurisdiction of motion by insurer to dismiss employee's
appeal for want of prosecution or because not entered "forthwith" in
Supreme Judicial Court. In re Moran (Mass.)...

(4). Record.

640

640

516

Facts on which claim for compensation is based, if agreed upon on appeal to
common pleas, should be brought before Supreme Court upon record, on
subsequent appeal to it. Lane v. Horn & Hardart Baking Co. (Pa.).. 927

(5). Review.

Admission of hearsay evidence, if error, was harmless, where court expressly
stated that such evidence was excluded in his determination of the matter
and there is sufficient competent evidence to support award. A. Bres-
lauer Co. v. Industrial Commission of Wisconsin et al. (Wis.).....
Where circuit court has reversed decision of board awarding compensation,
servant must produce evidence that board was justified in making award
and that circuit court was wrong in reversing it. David Bradley Mfg.
Works v. Industrial Board of Illinois et al. (III.)..
Where the alias writ of certiorari to review award recited that application
was made by praecipe on August 8th for writ to review decision of
Board on July 26th, it would be presumed that allas writ correctly stated
facts that original praecipe was filed within statutory period, but was not
served according to law, which necessitated issuance of alias writ, so
that employer did not lose right to review. Fruit v. Industrial Board
et al. (III.)
Right of review by Supreme and Superior Courts in compensation claim is on
certiorari alone, and they may examine everything properly contained in
records sent to common pleas, including findings and reasons of court
below. McCauley v. Imperial Woolen Co. et al. (Pa.)..

(6).— Questions of law or fact.

...

189

226

448

930

In proceeding by common laborer for personal injury when delivery wagon
struck boom of concrete breaker and moved it toward him, finding of
Board, made final arbiters of questions of fact, that he was sitting on
curb during lull in work, but on duty, was sufficient to support award
though against weight of evidence. Malone v. Detroit United Ry. (Mich). 293
In accordance with act, finding of Justice of Superior Court, that heat
prostration was cause of employee's death is conclusive on appeal, in
absence of fraud, there being evidence upon which he might find. Walsh
v. River Spinning Co. (R. I.)..

(7)

In absence of showing whether workman overcome by sunstroke was com-
pelled to remain in pit must be recommitted to board on question whether
he was at liberty to stop work in time to protect himself. McCarthy's
Case. In re Employers' Liability Assurance Corp. (Mass.)....

689